United States:
Navigable Waters Protection Rule: How Are The "Waters Of The United States" Being Defined?

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On January 23, 2020, the United States Environmental Protection
Agency ("EPA") and the U.S. Army Corps of Engineers
issued the Navigable Waters Protection Rule (the "2020
Rule"), which includes a revised definition of the
"waters of the United States" subject to federal
regulation under the Clean Water Act.1 The revisions in the 2020 Rule
come after a line of U.S. Supreme Court ("Supreme Court")
cases ending with Rapanos v. United States,2 as
well as an Obama-era administrative rule addressing the waterbodies
under federal jurisdiction (the "2015 Rule").3Rapanos was the last time the Supreme Court interpreted
the term "waters of the United States," with the intent
of curtailing the substantial litigation concerning the meaning of
the phrase and defining what "waters of the United
States" should be included under federal jurisdiction. The
2015 Rule intended to clarify the definition further and codify the
Supreme Court decisions. When effective, the newly issued Navigable
Waters Protection Rule will limit the 2015 Rule, attempting again
to define what are and what are not "waters of the United
States."

The controversy over how "waters of the United States"
should be defined has persisted over decades since the passage of
the Clean Water Act in 1972. Whether a property is found to contain
regulated wetlands has significant impact on how the land may be
used or developed. Therefore, it is important that landowners and
developers with potential wetlands on or adjacent to their
properties understand the reach of this new federal regulation.

2015 Rule

The Clean Water Act, which regulates "navigable
waters," defines "navigable waters" simply as
"waters of the United States, including territorial
seas."4 In Rapanos, with
plurality, concurring and dissenting opinions, all of the Justices
concluded that "waters of the United States" include some
waters that are not navigable in the traditional sense. The
plurality found that "waters of the United States"
included permanent and continuously flowing bodies of water (e.g.,
streams, oceans, rivers, and lakes), as well as only those wetlands
with a "continuous surface connection" to a permanent
body of water.5 In his concurring opinion, Justice
Kennedy was more inclusive and opined that for a wetland to be a
jurisdictional water, there needed to be only a "significant
nexus" to waters that are navigable.6

The 2015 Rule resulted in a broad definition of "waters of
the United States." The 2015 Rule placed waters into three
categories to determine whether they are under the scope of the
Clean Water Act: (1) waters that are covered by the Clean Water Act
in all circumstances (known as "jurisdictional by rule");
(2) waters that require analysis on a case-by-case basis to see if
the water is covered by the Clean Water Act; and (3) waters that
are not covered by the Clean Water Act. Waters that are
"jurisdictional by rule" are comprised of six categories
that include waters that are used or could be used in interstate or
foreign commerce, interstate waters, interstate wetlands,
territorial seas, tributaries of the "jurisdictional by
rule" waters, impoundments of water that are identified as
jurisdictional, and waters adjacent to "jurisdiction by
rule" waters, such as wetlands, lakes, and ponds.7

When looking at waters on a case-by-case basis, the 2015 Rule
called for a determination of whether the water has a
"significant nexus" to a jurisdictional water, i.e.,
whether a water or wetland affects the integrity of
"jurisdictional by rule" waters, thereby incorporating
Justice Kennedy's definition. Waters that were not included
were prior converted cropland, waste treatment systems, puddles,
and swimming pools.8

2020 Rule

The 2020 Rule breaks down the "waters of the United
States" into four categories that are narrower in scope than
the 2015 Final Rule, following more closely the plurality opinion
in Rapanos.9 The four categories are (1) the
territorial seas and traditional navigable waters; (2) tributaries
of such waters; (3) lakes, ponds, and impoundments of
jurisdictional waters; and (4) adjacent wetlands. The 2020 Rule
also defines what are not "waters of the United
States."10

Under the 2020 Rule, jurisdictional waters include lakes, ponds,
and impoundments only when they contribute surface water flow to a
traditional navigable water or territorial sea directly, through
other waters of the United States or through channelized
non-jurisdictional surface waters. Lakes, ponds, and impoundments
may also be regulated if they are flooded by a water of the United
States in a "typical year." Use of the typical year is to
avoid the consideration of conditions that are too wet or too dry.
Additionally, unlike the 2015 Rule, perennial and intermittent
tributaries to traditional navigable waters are included within
federal jurisdiction only if they flow more often than just after a
single precipitation event.

Adjacent wetlands to be regulated under the 2020 Rule primarily
include wetlands that actually touch other jurisdictional waters,
although wetlands that are separated from a water of the United
States by a natural berm, bank, dune, or artificial dike, are also
considered regulated wetlands as in the 2015 Rule. Similar to
lakes, ponds and impoundments, an adjacent wetland may be under
federal jurisdiction if it is inundated from the flooding of a
water of the United States in a typical year. Waters that are not
included in the Navigable Waters Protection Rule are waterbodies
not included in the four categories, i.e., groundwater, ephemeral
features, diffuse stormwater, farm and roadside ditches, and
artificial lakes and ponds, among others.

The 2020 Rule eliminates the 2015 Rule's "significant
nexus" test, arguing that the 2015 Rule would allow for
jurisdiction over waters that would conflict with Supreme Court
precedent,.11 As a result of elimination of
the significant nexus test, an important change in the 2020 Rule
concerns contaminated groundwater that discharges into navigable
waters. The 2015 Rule included such groundwater as jurisdictional.
In the 2020 Rule, groundwater, including groundwater draining into
navigable waters, is excluded from the definition of "waters
of the United States."12 The regulation of contaminated
groundwater would be left to other applicable Federal and State
environmental statutes.*13

6Id. at 780 ("wetlands... [that] significantly affect
the chemical, physical and biological integrity of other covered
waters"). Although signing on to the plurality opinion, Chief
Justice Roberts lamented in his own concurring opinion that,
without a majority opinion, "[l]ower courts and regulated
entities will now have to feel their way around on a case-by-case
basis." Id. at 758.

Over the past several weeks while most Americans have been sequestered in their homes and national attention has been focused on the COVID 19 pandemic, several nationally important issues of environmental concern have dramatically surfaced.

On April 21, 2020, the United States Environmental Protection Agency ("EPA") and Army Corps of Engineers ("Corps") completed step two of the two-step "repeal and replace" process ordered by President Trump in 2017.

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